So if you anger the investment bankers by supporting legislation to break up the too-big-to-fail banks, you will smack into a wall of 24/7 ads exposing your every flaw. If you displease oil companies by supporting legislation to deal with global warming, you will now be hit by a tsunami of advertising saying you are opposed to jobs and the American Way. If you rile the defence contractors by opposing the gargantuan war budget, you will face a smear-campaign calling you Soft on Terror.

Representative Alan Grayson says: "It basically institutionalises and legalises bribery on the largest scale imaginable. Corporations will now be able to reward the politicians that play ball with them – and beat to death the politicians that don't... You won't even hear any more about the Senator from Kansas. It'll be the Senator from General Electric or the Senator from Microsoft."

This is exactly the problem we saw in 2005 with the Exclusive Brethren, and exactly the problem we were trying to prevent here with the Electoral Finance Act. Thanks to this decision, we are likely to get thoroughly educated in why such restrictions are necessary. In order to be meaningful, democracy requires a level playing field, where all voices can be heard. When the wealthy can just buy the outcome by drowning out (or threatening to drown out) all other voices, then the result ceases to be democratic.

(Meanwhile, its no wonder people don't bother voting in the US. Why would they? It doesn't matter who they vote for - the corporations always win. under those circumstances, denying legitimacy begins to look like a valid tactic...)

Disturbing news from the UK: Paypal has blocked donations to the Arrest Blair campaign, supposedly on the basis that it "encourages illegal activity" (conducting a lawful citizens arrest of a rich and powerful figure apparently being illegal in the eyes of PayPal). It's a blatantly political move - and its not the first time they've done it. Last week, they froze the assets of Wikileaks - a site which encourages and publishes anonymous leaks in the public interest, and is credited with "produc[ing] more scoops in its short life than the Washington Post has in the past 30 years".

There may or may not be a link, but regardless, its a signal warning of the dangers of outsourcing your currency to a private company which may have its own political agenda. Being the default payment channel for the internet gives PayPal power - power they can abuse to shut down anyone, silence any cause. Such a concentration of power is dangerous in a democracy, and it raises the spectre of corporate control and censorship. What if they decide to shut down the women's rights movement? The climate change movement? Anyone calling for tighter regulation of banks?

With civil society increasingly going online, this is not a risk we can afford to take. It is time to regulate PayPal to protect our democracy.

Fiji’s interim prime minister, Commodore Frank Bainimarama, has restated that any elected government will do its work on the military’s terms.

Commodore Bainimarama has told the Fiji Brodcasting Corporation in Kadavu that the military will see that the government that comes into power after the 2014 election does not change the path to move Fiji forward.

He says they will prepare all leaders to be familiar with their targets before the elections.

Commodore Bainimarama says they will see that there’s no diversion from the path they have set.

This is not democracy - it is simply a democratic facade over military rule. The result will be that the wishes of the Fijian people will be vetoed by an unelected group of military thugs - just as they were in 2006.

The long-term solution to Fiji's woes is not a military veto, but the elimination of the military. Fiji has no need of an army (Samoa gets by fine without one), and the past 20 years shows clearly that the primary threat to Fiji's security and stability is its own military. If they're serious about "defending" their country, they should start by destroying their guns and going home.

The New Zealand Refining Company is one of New Zealand's biggest polluters. Its Marsden Point refinery was responsible for almost 900 thousand tons of CO2-equivalent emissions in 2007 - 1.2% of New Zealand's total. At current carbon prices, that means they should be paying about $18 million a year to cover their emissions - but they're not. Why? because back in December, the government quietly exempted them from any liability under the ETS.

The exemption is due to a Negotiated Greenhouse Agreement they signed with the government back in 2003, under which they agreed to pursue "world's best practice" in energy intensity. I was quite interested in this agreement, so I OIA'd it. Unfortunately, the result was not particularly useful. While I obtained a copy of the agreement and its schedules, all the key details had been deleted on the basis that it was "commercially sensitive", "confidential", or that releasing it might make it difficult for the government to negotiate with NZRC. So, for example:

The key metric by which NZRC's performance is measured is the Energy Intensity Index, or EII. We are not allowed to know NZRC's historical performance in this, its baseline, or its targets.

We are not allowed to know what constitutes "world's best practice" in EII, so we cannot tell if those targets actually meet that goal.

We are not allowed to know the dates on which NZRC's performance will be assessed.

We are not allowed to know what, exactly, NZRC is to be exempted from.

We are not allowed to know the definition of "competitiveness-at-risk", or the process by which the government assessed whether NZRC fell into that category. As a result, we cannot tell whether the NGA is justifiable, or just a sweetheart deal with a powerful polluter.

The deal will last until 2012, after which it may be renegotiated for a further 10 years. Using the government's estimates of carbon prices ($25 / ton before 2012, and $50 / ton after), that means the deal will potentially cost us half a billion dollars. With this much public money effectively being paid as a pollution subsidy to a private company, this deal deserves the highest level of scrutiny. Unfortunately, as seen above, we can't do that. We can't tell whether our politicians and public servants have served us well or poorly because the key details of what they have done are kept secret. As a result, we have no way of judging their performance, and no way of effectively holding them to account.

It's a fine example of why secrecy has no place in a democracy: because it inevitably undermines the people's ability to hold elected representatives to account. As for the solution, I'd start by deleting the confidentiality and commercial sensitivity clauses from the OIA. If companies want public money, they should face proper scrutiny, to see whether they actually need it or whether they're just engaging in special pleading for an easy handout. And if companies don't want to do that, then they can stand on their own two feet instead.

Thursday, January 28, 2010

Last year we were treated to the unseemly sight of a government Minister treating what should be a regular speech to inform interested parties of government policy as a party fundraiser, and charging people to hear what he should be telling them for free. Unfortunately, the rot seems to have spread. Next month, FutureGenNZ will be offering a series of $50 (+ GST) "Webinars" - seminars streamed live over the web - on Understanding the Emissions Trading Scheme. Ostensibly given by FutureGenNZ, a "sustainable business" consultancy, the actual content will be "delivered directly from the Ministry for the Environment and the Ministry of Economic Development". FutureGenNZ will simply be clipping the ticket so that we can hear from our government.

This is simply a privatisation of access to government information. MED and MfE should be doing this themselves, for free, as they have done in the past. We have an expectation in our modern, non-corrupt democracy that government is a free service, available to all regardless of means. And we should fight to keep it this way.

Phil Goff is giving a major speech in Hamilton today, aimed at launching Labour for the year. And unlike his last dismal, racist, toxic outing, this one hits the nail on the head. Entitled "The Many. Not The Few", it demands that the growth following the recession benefit ordinary New Zealanders, rather than National's privileged elite.

Labour has a good record on this. During their term in office, they halted the rise in inequality and channeled growth to benefit those on lower incomes. Most New Zealanders ended up better off - unlike the 90's, when most of us were made actively worse off while the benefits of economic growth were captured and monopolised by a tiny clique at the top. And they have the policies to deliver: further increases in the minimum wage, employment-relations law which allows workers to fight for and win pay rises rather than being summarily dismissed if they join a union in the first 90 days, gradual restoration of the welfare state and a cap on top public-sector salaries.

This is a good theme for Labour to press on. Fairness is a basic kiwi value. We expect growth to be fairly distributed (or we have no reason to support it), and we expect the rich to pay their way rather than shirking their share with lawyers and accountants. Plus, there are strong empirical arguments for a more equal society. Heirarchy kills. Inequality is bad for everyone. Reducing it makes us all better off.

Labour needs to fight and win this argument over the next two years. Fortunately, national, with its policy of robbing the poor to pay the rich, looks to be doing everything it can to help them.

Meridian Energy has been granted resource consent by the Environment Court for its 120MW Central Wind wind farm near Taihape. The project had been challenged on the basis of landscape values - the same reason that had caused Meridian's 600 MW Project Hayes in Central Otago to be rejected - and because it would affect tourism. But unlike Central Otago, the slag heap in the middle of the North Island isn't considered an outstanding landscape, while the court found it was unlikely to diminish tourism in the area (that would require that there be some; Taihape and Waiouru are not known as tourist destinations).

If there is no further appeal, the wind farm will be constructed over the next two summers, and could be generating within a year.

Jeanette Fitzsimons has announced that she will be retiring immediately when parliament reconvenes, to spend more time with her grandchildren. She's my favourite MP, a wonk's wonk, and her departure will be a tremendous loss to parliament, but as with the other Green MPs who have moved on over the last few years, I can't begrudge her for it. She has spent 13 years in parliament, more than we have any right to ask. And by retiring now, she's living that Green value of putting life before mere work.

She was also one of Parliament's most effective backbenchers. In her 13 years in the House, she managed to get 6 bills drawn from the ballot, and one of them passed into law. The Energy Efficiency and Conservation Act 2000 and the establishment of EECA is her legacy. That's a pretty significant achievement for someone who never held Ministerial office. But she was also influential on policy, shifting the ground and wearing people down by quietly arguing and waving facts and figures. This term she seems to have found that more difficult - Gerry Brownlee is sadly not a member of the reality-based community - and I can understand why she didn't want to spend another two years beating her head against that brick wall.

Jeanette's departure also makes the generational change in the Greens clear. The co-leadership has passed to new, younger, hands, and there are now only two MPs left out of the original intake: Sue Kedgley and Keith Locke. Neither has announced any plans to retire soon, but it will likely happen this term or the next. Their eventual replacements (and Jeanette's) will have some big shoes to fill. OTOH, some of the new MPs elected this term are already establishing their niches and expanding their own footwear, and I don't think they'll have any problem managing.

Wednesday, January 27, 2010

The government has increased the minimum wage by a paltry 25 cents an hour. This means it has kept pace with inflation (at least until National hikes GST to make the poor pay for the rich’s tax cuts) - but in previous years we'd gotten used to large increases being used to drive both social equity and productivity. With this pathetic increase, national has signalled that those days are over, that it does not care about the poor, and that it remains committed to the low wage, low skill economy with a wider than ever gap with Australia.

And OTOH, the fact that there was any increase at all is a victory of sorts. When they were last in government, National let the minimum wage stagnate, meaning that its effective value plummeted. They increased it just once in nine years - in 1997, after being forced to by Winston Peters. Now, having promised centrism and facing significant public support for a big boost, they have to at least pretend to care. But clearly, we need to force them to pretend harder.

Last year, Samoa's ruling Human Rights Protection Partytried and failed to evict the opposition from Parliament using a one-sided anti-party hopping law. In the wake of that failure, they are now trying again, using their supermajority to amend the constitution to prohibit not just party hopping, but party formation by independents:

The Constitution Amendment Bill was backed by a two thirds majority and states that an MP’s seat becomes vacant, if he or she quits their party and joins another party.

It also says a seat is vacant if a member joins a party or organisation with political aims which is not yet registered or different from the party they belonged to when they entered parliament.

(I should note that the Samoan Parliament's high threshold for party recognition - something like 10MPs doesn't help here, as it results in MPs being legally classified as "independents" despite having been elected on behalf of a registered party. The new law could see such MPs summarily evicted for "party hopping" if they claim membership in their actual party, even though it is the Speaker's classification rather than their allegiance which has changed).

The government has called in the resource consent applications for industrial dairying in the MacKenzie Country. Good. This proposal will fundamentally change one of our most striking natural landscapes, compete with electricity generators for water, and pollute some of our most pristine waterways - all issues of national significance. From the look of it, the government is most concerned about water quality - a key issue as the farms are the equivalent of sticking a city of 250,000 in the area and pumping all its effluent straight into the Waitaki River. We wouldn't allow this for a city of people, and we shouldn't allow it for a city of cows either.

This doesn't affect submissions already made - they will now be considered by the board of inquiry rather than the Waitaki District Council Canterbury Regional Council. But the application will be re-advertised and further submissions sought, giving the rest of New Zealand a real chance to have a say.

The Department of Conservation (DOC) is allowing commercial fishers to harvest endangered eels from rivers on conservation land, the Green Party said today.

The Green Party has discovered that late last year DOC issued three concessions for commercial eel fishers to take eels from rivers located in the West Coast Tai Poutini Conservancy, Green Party Conservation Spokesperson Kevin Hague said.

[...]

The native longfin eel is found nowhere else in the world and is listed by DOC as a threatened species in gradual decline, the same level of threat as the great spotted kiwi, little blue penguin, rifleman, and banded dotterel.

While the native shortfin eel is not endangered there are concerns that females of the species have been overfished relative to males, leaving an imbalance that could affect future numbers.

As Hague points out, we wouldn't allow the hunting and killing of great spotted kiwi, so why are we treating eels differently? They're a threatened species, living on protected land. They should therefore be protected. This sort of commercial exploitation threatens the species further, and allowing it is contrary to DoC's purposes; whoever signed off on it needs to be sacked, and soon.

Meanwhile, I'm again wondering: why are the Greens still in bed with a government which does this?

Long-finned eels breed only once, at the end of their life. When they are ready to breed, they leave New Zealand and swim five thousand kilometres up into the tropical Pacific to spawn, probably in deep ocean trenches somewhere near Tonga.

When they reach their destination, the females lay millions of eggs that are fertilised by the male. The larvae are called leptocephalus and look nothing like an eel –they are transparent, flat, and leaf-shaped. The larvae reach New Zealand by drifting on ocean currents.

[...]

Eels take many years to grow and it could be decades before an individual is ready to undertake the long migration back to the tropics to breed. The average age at which a long-finned eel migrates is 23 years for a male and 34 for a female. The adults never return as they die after spawning.

So every eel caught will never breed - a serious and significant loss to the population. This is simply insanity, and I'm staggered that DoC allowed it.

Labour is putting its money where its mouth is on the minimum wage, with employment spokesperson Trevor Mallard putting up a bill to raise it to $15 / hour over the next two years. Its a good move, and it perfectly highlights the difference between Labour and National: one promoting the interests of the many, the other those of a privileged and greedy few.

A flick through Parliament's annual register of MPs' pecuniary interests reveals many parliamentarians could lose out if the Government moved to plug the tax loopholes that sprang up after its predecessor whacked the top personal tax rate up to 39c.

More than two-thirds of the National line-up have beneficial interests in trusts (entities that the Inland Revenue believes are responsible for a $300 million hole in tax revenues at the current 33 per cent tax rate).

Then there are investments in rental property (another area which IRD says cost the Government $150 million in lost tax revenue) and the traditional investments in farms and share portfolios.

The MPs' personal wealth - like those of National's support base - is spread across asset classes which stand to either retain or lose value depending on which of the working group's options the Government chooses to fund major cuts to company and personal taxes.

John Key is among them - his extensive property portfolio (homes in Remuera, Omaha Beach, Hawaii, London and Wellington) mean he is seriously exposed to a capital gains tax or land tax. The implication is that these people will put their own interests first, and hike GST rather than voting to increase their own taxes. And sadly, it's probably right.

Unmentioned by O'Sullivan is that MPs are in the same boat on income taxes as well. Every single MP earns at least $130,000 (plus expenses) from their parliamentary salary - putting them in the top 2% of income earners. Cabinet Ministers, on $243,000 a year, are in the top 0.5% (figures based on IRD's 2008 data here). Once you notice this, their relentless focus on cutting top tax rates seems just a little self-interested.

Meanwhile, as an ordinary person, I'd like us all to be paying more taxes. Why? Because it means my local hospital wouldn't have to whore itself out to McDonalds to make ends meet, our schools wouldn't have to hit parents up for "donations" to provide the basic service we expect, our parents could get the paid leave they get everywhere else in the civilised world, and that people wouldn't face permanent destitution due to inadequate benefit levels as a result of temporary misfortune due to serious illness or unemployment. And as an ordinary person, I understand that simple fairness dictates that those who can afford to should pay more. Unfortunately, their high salaries, tax-rorting trusts, and extensive property portfolios blind our rich MPs to the views of their ordinary constituents. On this issue, they're on a completely different planet. Is it any wonder we get policy which reflects their interests, rather than ours?

Tony Blair is a war criminal, guilty of "the supreme international crime", waging a war of aggression. Unfortunately, the UK government has no interest in bringing him to justice. The present government backed the war, and many of them could end up beside Blair in the dock should he ever face trial. As for the opposition, they voted for the war, and so can hardly oppose it now. The result is that a war criminal gets to walk free due to the protection of the powerful.

Enter the Arrest Blair campaign. They're offering a bounty to anyone who attempts a peaceful citizens arrest of Tony Blair for crimes against peace. The attempt doesn't have to be successful, but it does have to be reported in the media. The aim is to embarrass the government into enforcing the law; making the rat live in fear of justice for the rest of his life (as Pinochet did) is just a bonus.

The ADE-651 detector has never been shown to work in a scientific test.

There are no batteries and it consists of a swivelling aerial mounted to a hinge on a hand-grip. Critics have likened it to a glorified dowsing rod.

Mr McCormick told the BBC in a previous interview that "the theory behind dowsing and the theory behind how we actually detect explosives is very similar".

He says that the key to it is the black box connected to the aerial into which you put "programmed substance detection cards", each "designed to tune into" the frequency of a particular explosive or other substance named on the card.

He claims that in ideal conditions you can detect explosives from a range of up to 1km.

The training manual for the device says it can even, with the right card, detect elephants, humans and 100 dollar bills.

That's right - they're dowsing for explosives. It would be laughable if it wasn't so obscene. People are being arrested, possibly even tortured, based on the "evidence" from this device. And meanwhile, the bombs keep going off, the innocent keep dying, and the British quack who sold it to them is laughing all the way to the bank with 85 million pounds. It is simply murder by quackery.

The Cook Islands prime minister says he doesn’t plan on calling parliament for at least several months.

Jim Marurai is facing a vote of no confidence by the majority of MPs when parliament sits next and pressure has been on him to set a date for the next parliamentary sitting and for a snap election.

He says a parliamentary sitting will be needed on the budget, which doesn’t have to be passed until July the 1st so he’ll call parliament again when more MP’s support him.

“We’ll wait for about three months to find out if we can secure support for the calling of parliament.”

The logic is simple: no Parliament, no vote. No vote, no loss of office and perks. But the cost of this circumvention of democracy is enormous. The meta-rule of the Westminster system, summed up by Kenneth Keith in the NZ Cabinet Manual, is that

The Queen reigns, but the government rules, so long as it has the support of Parliament

The Cook Islands government clearly does not have the support of Parliament. The fact that there has not been a formal vote does not matter - the public statements of the party leaders are enough to call it into question. And in such circumstances, the government should be required to demonstrate confidence quickly or resign. Clinging to power by the artifice of refusing to call Parliament so they can't vote you out of office fundamentally undermines the deomcratic principle on which the Cooks' system of government stands - and the legitimacy of the government itself.

As people begin to look at the Tax Working Group's proposals to raise GST and impose a land tax to pay for lowering taxes on the rich, it just looks worse and worse. While beneficiaries will be automatically compensated, the working poor and middle classes won't be, and so the burden will fall on them. The Standard has a nice chart of who wins and who loses here, and its pretty clear: 2.5 million of us will be made actively worse off through uncompensated GST hikes and rent increases, in order to marginally benefit a tenth of that number on higher incomes, while 1% of them - the top 25,000 taxpayers, those who earn over 190,000 a year - will make out like bandits. This is what National calls "fair". And it isn't. Instead, it is robbing the poor to pay the rich - exactly like they did in the 90's.

(And that's without even getting into the lunacy of their corporate tax cut - the only beneficiary of which is foreign-owned corporations. So, the poor pay higher taxes to reward Aussie banks with a history of tax evasion. Screw that)

The Tax Working Group's entire focus on redistributing the burden to allow tax cuts for the rich is fundamentally missing the point. We have bills to pay. As the government is constantly reminding us, we are facing a decade of deficits. On top of that, we have delayed contributions to the Cullen Fund to make up, plus the prospect of higher healthcare and superannuation costs from an aging population. If we are to pay for this, then shuffling the tax burden around isn't enough - we need to increase revenue by raising taxes. And fairness dictates that the burden should fall on those most able to pay.

Thursday, January 21, 2010

Writing in the Herald, Garth George objects to a "twink republic" (one where we twink out the words "Governor-General" and substitute "president", without changing the powers of the office) on the basis that:

A republic with a unicameral, half-elected Parliament and a weak, ceremonial president would be a recipe for democratic disaster.

But the only difference between our present arrangements and what George is objecting to is the nature of the head of state. At present, we live in a state with a unicameral, half-elected (to use George's words) Parliament and a weak, ceremonial monarch. So why would one be a disaster and the other not? The magic of monarchy?

This sort of magical thinking is common among monarchists. But what matters in constitutions is not people, but institutions. Our present constitutional framework works well at providing democratic and accountable government. Changing the means of appointment of the person at the top - but not their role or powers - is unlikely to significantly affect this.

Association president Bevan Hanlon said prisoners serving life sentences would have nothing to lose by being violent behind bars.

"The whole point is there is no carrot under this new [law]," Mr Hanlon said.

He said murderers are now being sent to Paremoremo with sentences of over 20 years.

"That's as bad as it gets. It doesn't matter what they do, they're not going to get anything else done to them, so what's to stop them attacking Corrections officers."?

That's backed up by criminologist Greg Newbold - who having actually served time in prison, could be considered to know what he's talking about. Unlike the politicians in National and ACT. But there's a bigger concern: that the new law is an outright incentive for murder:

Howard League for Penal Reform president Peter Williams, QC, said some criminals with a record may kill in order to avoid being caught by police.

"If people realise that if they are going to be arrested, they are going to be in there [prison] for their natural life, there may be circumstances where they are going to kill," Mr Williams said.

That's and it is backed up by empirical evidence from the US, cited by the Herald last year, which found that homicide rates increased in cities with "three strikes" laws when compared with those without such laws. The same article also reports that "three strikes" results in a decrease in reporting rates for domestic violence, as victims didn't want to see their abusers put in jail forever. But the government would probably regard that as a plus, since it would decrease the headline rate of violent crime, thus showing that the law was "working".

If the government's aim is to decrease violent crime, then this is exactly the wrong way to go about it.

Another police officer from Rotorua is to face trial on historic sex charges. In case people had forgotten, Rotorua is where the Rickards / Shipton / Schollum rape-clique hailed from - and they're not the only ones. Apparently the new defendent - Iosefa "Joe" Fiaola - is the ninth Rotorua policeman to be charged with historic sex crimes.

Something was clearly very wrong in Rotorua's police culture in the 80's to turn so many of its police - people who were supposed to protect people - into rapists and sexual predators. But the scarier thought is that we've found so many police rapists in Rotorua because its the only place we've really looked...

The UK government has responded to recent terrorism scares by announcing that they will introduce a US-style no-fly list, banning those suspected of being terrorists from boarding planes bound for or within the UK. It sounds good, but we've seen how this works in the US: thousands of innocent people banned from flying because they unfortunately share the same name as someone on the list, tens of thousands more (some children) harassed by "enhanced security checks" for the same reason every time they go into an airport (meanwhile, actual terrorists change their names, or don't appear on the government's radar in the first place). The enormous numbers of false positives alone is a reason to regard this scheme as moronic, without even getting into the way it can be (and has been) abused to deny freedom of movement to the politicalenemies of the government-of-the-day.

As with the crackdown on jokes about terrorism, hyper-vigilance and risk-aversion by official will lead to widespread human rights abuses. All in the name of "protecting" us, of course. But if the price of such protection is being forced to live in a tiny and ever-shrinking cage, I'd rather take my chances, thanks.

Wednesday, January 20, 2010

A group of rich, right-wing ideologues wants a more regressive tax system which sticks it to the poor with higher GST while giving tax cuts to the rich and opening new loopholes for them to dodge paying their fair share through corporate fronts.

Under the regime, an offender will receive a standard sentence and warning for the first serious offence. For the second offence they will get a jail term (in most cases) with no parole and a further warning. On conviction for their third serious offence, the offender will receive the maximum penalty in prison for that offence with no parole.

On the face of it, this is weaker than the original bill, which proposed a mandatory sentence of life imprisonment with a 25-year non-parole period for a third specified violent offence. But it strengthens the regime at the other end, by removing the requirement that the offender actually receive a sentence of five or more years imprisonment in order to qualify for a "strike"; now, merely committing the offence, regardless of the actual degree of offending, will qualify. The result is that minor offences, even those which have been "clean slated", could attract a severe and disproportionate penalty later on (alternatively, people who have served their time could face a prolonged sentence later on for minor offending).

Absent manifest injustice [which is a very high threshold - I/S], the sentencing court is obliged to impose a sentence on a qualifying offender that may be significantly more severe than that imposed on a more culpable, but non-qualifying, offender. As a result, the scheme does not ensure a consistently rational connection between the offence and the penalty.

While the maximum third-strike penalty has been reduced, this still applies. If passed, this bill will see offenders subjected to disproportionate sentences which bear no relation to their actual degree of culpability. And that is simply wrong. People should serve the sentence for the crime they have committed, not serve an extra sentence for a crime they have already been punished for.

Imagine this: you're an FBI agent, working a tough case. Things would be so much easier if you could obtain the target's phone records, but for that you need some probable cause - which you don't have.

FBI Agents did this in over 2,000 cases between 2002 and 2006. By doing so, they broke the law, committed a crime. And they didn't just do it to criminals - they also used false allegations of terrorism to get the phone records of journalists, likely in an effort to find out who was leaking embarrassing information about the government's conduct in the war on terror.

Do we really need any more examples of why we should not give law enforcement these sorts of powers?

The world has its share of fuddy-duddy judges (always old men) who think that women are "asking" for rape if they fail to adhere to some social code from a previous century - but a decision from the UK this week has taken them to a new low in misogyny:

Proceedings were stopped and five men were cleared of raping and conspiring to rape a 24-year-old Liverpool woman after it emerged that she had confided online about her group sex fantasies. She shared these fantasies with a Bolton man over the internet and then went to visit him. She says her intention was to have sex with him and with no one else. But when she arrived at his house, she was confronted by several men, some of whom allegedly raped her – though they denied doing so.

We will never know for sure what happened because the trial was halted when excerpts from the women's MSN chatlogs were produced. They showed her expressing fantasies about having an orgy. Prosecutor Michael Leeming said: "There is material in the chatlogs from the complainant, who is prepared to entertain ideas of group sex with strangers, where, to use her words, 'her morals go out of the window' … This material does paint a wholly different light as far as this case is concerned … We take the view that it would not be appropriate to offer any evidence."

Judge Robert Brown concurred. He ordered the jury to return not guilty verdicts for rape and conspiracy to rape against the five defendants, telling them: "This case depended on the complainant's credibility … Not to put too fine a point on it, her credibility was shot to pieces."

And there you have it: if a woman ever expresses fantasies about group-sex online, she can be legally gang-raped with impunity. Its an appalling decision, which completely ignores the question of consent or the idea that someone may be quite keen on something, but not tonight, not like that, not with them. The Guardian's Peter Tatchell gets it perfectly right when he says:

When a person does not consent to sex, it is rape, regardless of their gender, social background, sexual history or erotic fantasies. No means no – and there are, or should be, no exceptions. Even if a person initially consents to sex, they have a right to change their mind and withdraw consent. Sex after a person has said "no" or "stop" is rape – regardless of the person's sexual fantasies and irrespective of whether they were previously chaste or promiscuous.

Rape is rape, period. Having an adventurous sexual appetite and being a so-called "loose" woman or man should not place a person outside the protection of the law.

Defence Force spokesman Kristian Dunne said five regular army soldiers from New Zealand attached to the International Security Assistance Force forces were on the ISAF base at the time and were not involved. The base went into lockdown during the attack.

Thanks to the Prime Minister, we now know that was not true. So why did they lie to us? Why is it their instinctive response? Does our Defence Force have that little respect for us as citizens that they think we ought to mushroomed, kept in the dark and fed shit, about what our military is doing in our name overseas?

The Defence Force needs to learn that we live in a democracy. What they do is our business, and if they do things without reference to us, in secret, or against our wishes, then those acts lack any democratic legitimacy.

In a sense we have come to our nation's capital to cash a check. When the architects of our republic wrote the magnificent words of the Constitution and the declaration of Independence, they were signing a promissory note to which every American was to fall heir. This note was a promise that all men would be guaranteed the inalienable rights of life, liberty, and the pursuit of happiness.

It is obvious today that America has defaulted on this promissory note insofar as her citizens of color are concerned. Instead of honoring this sacred obligation, America has given the Negro people a bad check which has come back marked "insufficient funds." But we refuse to believe that the bank of justice is bankrupt. We refuse to believe that there are insufficient funds in the great vaults of opportunity of this nation. So we have come to cash this check -- a check that will give us upon demand the riches of freedom and the security of justice. We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to rise from the dark and desolate valley of segregation to the sunlit path of racial justice. Now is the time to open the doors of opportunity to all of God's children. Now is the time to lift our nation from the quicksands of racial injustice to the solid rock of brotherhood.

This is the best of America - its promise of equality and human rights. And the question today is whether there are sufficient funds in the bank of justice to allow gays to enjoy those rights. The same forces who stood against King, the Southern bigots, believe there are not. I believe there are.

People have long argued that the UK monarchy is discriminatory and bigoted. Quite apart from the inherent discrimination of monarchy (which excludes everyone other than the monarch from the chance to be elected head of state on their merits), the UK uses male primogeniture, which discriminates against women. As if that's not bad enough, the Act of Settlement 1701 excludes Catholics and anyone married to a Catholic from the royal succession. Now, the UK Parliament's joint committee on human rights has condemned these rules as violating the UK's international human rights commitments:

Discrimination against Catholics in the law of marriage is contrary to [article 14 European Convention on Human Rights, which outlaws discrimination] in conjunction with article 12 [the right to marriage] and also arguably contrary to the freedom of religion of Catholics protected by article nine [the right to freedom of religion] ECHR. Male primogeniture in the law of inheritance generally is in our view arguably contrary to article 14 ECHR in conjunction with article one Protocol 1.113 [which covers respecting rights].

They are recommending that the discriminatory provisions be repealed, through amendments which establish a process for gaining the consent of the Commonwealth (required for changes to the royal succession). The result would be a better, less discriminatory monarchy. It would also be less appealing to the current crop of diehard protestant bigot monarchists - but that seems to be another reason in its favour.

The UK government promised to act on this issue last year, in response to a member's bill on the subject. Since then, they've done precisely nothing. Hopefully this will spur them to action.

According to the NCIS, each prisoner had fashioned a noose from torn sheets and T-shirts and tied it to the top of his cell’s eight-foot-high steel-mesh wall. Each prisoner was able somehow to bind his own hands, and, in at least one case, his own feet, then stuff more rags deep down into his own throat. We are then asked to believe that each prisoner, even as he was choking on those rags, climbed up on his washbasin, slipped his head through the noose, tightened it, and leapt from the washbasin to hang until he asphyxiated. The NCIS report also proposes that the three prisoners, who were held in non-adjoining cells, carried out each of these actions almost simultaneously.

Al-Zahrani, according to the report, was discovered first, at 12:39 a.m., and taken by several Alpha Block guards to the camp’s detention medical clinic. No doctors could be found there, nor the phone number for one, so a clinic staffer dialed 911. During this time, other guards discovered Al-Utaybi. Still others discovered Al-Salami a few minutes later. Although rigor mortis had already set in—indicating that the men had been dead for at least two hours—the NCIS report claims that an unnamed medical officer attempted to resuscitate one of the men, and, in attempting to pry open his jaw, broke his teeth.

The fact that at least two of the prisoners also had cloth masks affixed to their faces, presumably to prevent the expulsion of the rags from their mouths, went unremarked by the NCIS, as did the fact that standard operating procedure at Camp Delta required the Navy guards on duty after midnight to “conduct a visual search” of each cell and detainee every ten minutes. The report claimed that the prisoners had hung sheets or blankets to hide their activities and shaped more sheets and pillows to look like bodies sleeping in their beds, but it did not explain where they were able to acquire so much fabric beyond their tightly controlled allotment, or why the Navy guards would allow such an obvious and immediately observable deviation from permitted behavior. Nor did the report explain how the dead men managed to hang undetected for more than two hours or why the Navy guards on duty, having for whatever reason so grievously failed in their duties, were never disciplined.

But in addition to those implausibilities, there are also statements from the guards on duty that night that that three prisoners were taken to the black site, that the van which transported them went immediately to the medical clinic when it returned, and that (most importantly) no bodies were ever taken from the cell block to the medical clinic. The military authorities immediately ordered a coverup, ordering camp staff to remain silent and not contradict the official account, and removing vital evidence from the bodies they returned to relatives. There's also a disturbing report from UK Guantanamo inmate Shaker Aamer, which alleges suffocation torture similar to that apparently carried out on the victims (Aamer is currently suing the UK government over claims that MI5 was complicit in his torture).

This is a serious allegation, and it deserves a serious investigation. Torture is bad enough. Torturing people to death is worse. Those responsible must be held to account.

Green list MP Keith Locke has finally had his Head of State Referenda Bill, which he has waited seven years to have pulled from the members' ballot, selected for debate by Parliament. It is to be hoped MPs will allow it to reach a select committee, so that those who feel strongly about retaining links with the British monarchy or electing a president as head of state can have their say.

Mr Locke believes strong arguments exist for change, "not least that we are now a confident, independent nation in the South Pacific. Having a head of state in Britain does not match who we are in the 21st century". Monarchists disagree. They feel respect for Prince William's granny, a woman who has dedicated her entire life to duty, unlike some of her offspring, and great affection for Charles' and Diana's elder son.
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Though Parliament last considered our constitutional arrangements via a select committee inquiry only in 2005, it can do no harm to discuss it again.

Sending the bill to select committee will let Parliament have a good look at the prospects for a shift to a republic. More importantly, it will let the people have their say through the submissions process. On a serious constitutional issue such as this, Parliament should recognise that the constitution belongs to the people, and give us the opportunity to discuss it. If the government, which seems to be the main obstacle, thinks this bill is the wrong mechanism for doing so, then it should propose and provide an alternative. I'm sure republicans would be happy to have a Royal Commission investigate the issue, as was done for electoral reform. But even that is probably too much for National's anti-democratic monarchists.

Monday, January 18, 2010

The Independent today has a frightening piece on the way the UK's Automatic Number Plate Recognition (ANPR) database is being abused by police. Introduced originally to fight terrorism by tracking everyone, everywhere, the ANPR database's record of every vehicle in the UK is now being used to meet arrest quotas and raise revenue:

This target culture has allegedly led to unethical practices during roadside stops, according to concerned police sources. Some officers, they say, trawl through drivers' personal data on police databases to find any reason to arrest. Alternatively, they "wind up" motorists who, in their frustration, become abusive and are then arrested for a public-order offence.

"In short, officers do not have a complete understanding of the law, use flawed databases to justify immediate seizures, fail to adequately research and evidence the basis of their belief and almost certainly knowingly seize vehicles just to satisfy service and personal performance targets," one said.

Defects in the database have already led, in at least one case, to dangerous practices. In 2008, 16-year-old Hayley Adamson was killed by a Northumberland police officer responding at high speed to incorrect information on the ANPR. The officer was jailed last year.

Worse, 30% of the data in ANPR is inaccurate, leading to innocent people being victimised by police. In one case a woman who had asked police for help with domestic violence instead had her car seized because ANPR said it was uninsured - despite presenting them with the full insurance details on the spot. Police believed the dodgy database rather than the hard evidence presented to them - partly it seems because they had quotas to meet.

The effect of this on public confidence and trust in the police is utterly corrosive. But it should also cause us to be a lot more suspicious about their claims that new technology will only be used to fight terrorism and that it will not be abused. It won't, and it will - and this means that we should be very cautious indeed about giving police such tools.

We all know that its a bad idea to make bomb jokes in airports, as humourless security officials will not see the funny side. In the UK, that principle has now been extended to the internet. Last week, frustrated by the threat of snow disrupting his holiday plans, a man named Paul Chambers made a perfectly unremarkable comment on Twitter:

"Robin Hood airport is closed," he wrote. "You've got a week and a bit to get your shit together, otherwise I'm blowing the airport sky high!!"

"Making jokes about terrorism is considered a thought crime, mistakenly seen as a real act of harm or intention to commit harm.

"The police's actions seem laughable and suggest desperation in their efforts to combat terrorism, yet they have serious repercussions for all of us. In a democracy, our right to say what we please to each other should be non-negotiable, even on Twitter."

That right is now seriously under threat. Its not one we should give up. And if the security services want to take it off us, maybe its time we got rid of them.

While this looks to be a significant shift, its worth noting that (as here) the right only won after promising to continue the left's social policies. Unfortunately, with a bar on successive terms as President, the public has no effective way to hold Piñera to that promise - any electoral backlash will be inflicted on someone else. This seems to be an exceptionally poor incentive structure for a democracy.

Meanwhile, outgoing president Michelle Bachelet will leave office with a ridiculously high approval rating. She could almost certainly have another go in four years time if she wanted to - the question is whether she wants to, or whether a single term is enough.

Officially, this is to "protect jobs" - despite the fact that minimum wage increases have no effect on unemployment. Instead, the Prime Minister is just looking out for the economic interests of his rich mates. Because the blunt fact is that National and its cronies don't want a high skill, high wage economy - they want a high profit economy, which they have consistently pursued by keeping wages down. Its the sort of stupid, short-term thinking common to our business "leaders", and its one of the reasons for our comparative economic underdevelopment. Businesses don't invest in improving productivity to work better and smarter; instead they simply hire another warm body. But its productivity growth from capital investment which ultimately drives long-term increases in living standards and makes us better off. National's low-wage policy thus condemns us to a low-skill economy and an even greater gap in living standards with Australia - the exact opposite of what they claim to want. This is very, very bad for New Zealand, but its very, very good for their rich mates, and that is all National cares about.

But despite his enthusiasm and his blow-by-blow itinerary being printed in several New Zealand newspapers, no Kiwi fans showed up at the gates to see their royal representative.

"It's low-key to say the least," said Hello! reporter Judy Wade, a longtime royal watcher who has followed Prince William since the day he was born.

"Compared to people back home, those here really don't seem that interested at all.

"As one Kiwi I spoke to put it: I think they'd rather spend a nice day like this at the beach."

That's so beautifully kiwi. The Brits may be obsessed with hierarchy and deference and publicly displaying their loyalty to the unelected scion of an undemocratic institution - but we have better things to do. Like enjoying ourselves in the sun. The British royal-watchers call this "a distinct pro-republican feeling", but its more that we just don't give a damn - the monarchy is simply utterly irrelevant to our lives. Though from a republican view, that irrelevance is a two-edged sword; not giving a damn also tends to mean not giving a damn about getting rid of them. Hence the slow drift to republicanism; no-one cares about them, but no-one cares enough to finally sign the paperwork to get them out of our lives either...

Saturday, January 16, 2010

A 2-year-old New Zealand boy and his Indian-born mother were barred from India and, on their return to Auckland, delayed for four hours and questioned after their names appeared on a terrorism blacklist.

After a 20-hour journey to New Delhi, Shubhneet Kaur, a New Zealand citizen from Manukau, and her son, Bachint Vir Singh, were turned back to New Zealand despite holding valid tourist visas for India.

They pair arrived back in Auckland three days after their Monday evening departure - only to face a Customs interrogation about why they were on India's list of possible terrorists.

"My wife and baby boy were treated like criminals," said Ranvir Lali Singh, a builder, justice of the peace and secretary of the Auckland Sikh Society.

You would think that any reasonable person faced with a 2-year old "terrorist" would immediately realise its a false positive. But Customs and the SIS aren't paid to be reasonable, and as in the US, no-one will want to be the person who lets a Dangerous Terrorist walk free, or risk losing their job for displaying sanity. And so the lives of innocent people are ruined again because of risk aversion and arse-covering by those with power...

(As for the obvious question - how the hell can India deny entry to someone who was born there? - unfortunately unlike New Zealand they see citizenship as exclusive and do not permit dual citizenship).

A bill for a referendum on New Zealand becoming a republic will go close to passing its first reading in Parliament, with high profile Kiwis set to support it.

It is understood Green MP Keith Locke's bill, which is expected to reach Parliament in March, will have enough support that only two National or ACT Party MPs will have to add their backing for it to pass.

This is good news - this is an important bill which deserves a select committee hearing. But it would be better news if it actually had the numbers. So, I guess its time to start lobbying National and ACT MPs...

Friday, January 15, 2010

The law Commission is currently reviewing the Official Information Act 1982 and Local Government Official Information and Meetings Acts 1987. One of the areas they are interested in is sanctions. Currently the Acts are enforced by the Ombudsmen, who make (non-binding, but in practice always obeyed) "recommendations" on whether information should be released. As most breaches are inadvertent or a result of a misunderstanding of the law, this works reasonably well - but it still provides no real incentive to e.g. respond to requests on time. And as the Law Commission notes that there may be times when an agency sets out to deliberately flout the law, and that proper sanctions may be appropriate. I'd like to see this, but given the distributed nature of the work involved in responding to a request, I'm not sure if its do-able. And fining some bureaucrat because the Minister is lax about responding to "consultation" would be grossly unfair.

One of the big problems is lateness, and the best solution to it is more information. Agencies already centrally log requests for internal monitoring (both of performance, and what is being requested); requiring them to publish both annually and in realtime the statistical information from these logs (requests received, processed, outstanding, dealt with within 5, 10, 15, 20, etc days) would provide both a public benchmark by which to measure performance and a public stick to beat non-performers with. Call-centres do this as a management tool to provide pressure on their employees to perform; there's no reason we can't do the same with the government.

There are other things we can do. The New Zealand public service operates on a managerialist philosophy, with departmental chief executives responsible to Ministers for every aspect of the performance of their departments through an annual delivery agreement. Prompt and lawful handling of OIA requests could be written into those agreements, with CEOs losing their bonus or facing a set monetary penalty for any violation of the law. We use this technique for other key areas (on the basis that CEOs will then manage their departments to produce the desired results); all it requires is to elevate the government's duty to provide official information seriously enough to make it a key performance indicator.

As for Ministers - some of the worst abusers - I'm in favour of naming and shaming. Currently, if the Ombudsmen delivers an adverse OIA decision against a Minister, no-one hears about it (unless the requestor was a media outlet and they decide to kick up a stink). As a result, we don't know who is obeying the law and who is consistently violating it. Requiring Ombudsmen's decisions against Ministers to be tabled in Parliament would provide public information on this, and the natural desire to avoid bad publicity would give Ministers an incentive to obey the law.

Michael Hicks is a suspected terrorist. Every time he gets on a plane, he is searched on the orders of the US Transportation Security Administration. He is just eight years old. His first search was when he was two.

This is a perfect illustration of the insanity of watchlists. Sometime, someone named Michael Hicks got on the TSA's list. And so now, no-one named Michael Hicks (or any simple variation thereof) can fly without hassle. There are over 1,600 Michael Hicks in the United States. At least 1,599 are innocent. But they all get to be punished, thanks to paranoia about terrorism. And because no-one wants to be the person who let the Dangerous Terrorist board the plane (or rather, get sacked for refusing to conduct an unreasonable search), this extends to searching eight-year-old boys and two-year old children.

Meanwhile, the article also highlights that the searches can be easily avoided with a misspelling or a formal name-change. Thousands of Americans are already doing this to avoid being unjustly victimised - and if they can do it, actual terrorists can. Which means the entire scheme is a giant waste of time. But just as no-one wants to be the person who let the Dangerous Terrorist on the plane, no-one wants to be the person who cut security before the terrorist attack (particularly in a political culture dominated by screaming Republicans). And so political arse-covering will mean that the list and its unreasonable searches of the innocent will likely continue forever.

On Monday, the government will be getting a foreign aristocrat to open our new Supreme Court building. The Republican Movement of Aotearoa New Zealand will be there as well, to remind everyone that its time for a republic:

When: 10am, Monday 18 JanuaryWhere: Outside the Supreme Court building – Lambton Quay, Wellington, across the road outside Bowen HouseWhat: Protest in support of a democratic, New Zealand, head of state.

The land around the Arctic Circle is covered in a layer of permafrost - effectively, permanently frozen soil. That permafrost is one of the world's great reservoirs of carbon, holding an estimated 1,600 gigatonnes, much of it in the form of methane. And its melting:

Scientists have recorded a massive spike in the amount of a powerful greenhouse gas seeping from Arctic permafrost, in a discovery that highlights the risks of a dangerous climate tipping point.

Experts say methane emissions from the Arctic have risen by almost one-third in just five years, and that sharply rising temperatures are to blame.

[...]

They fear the warming caused by increased methane emissions will itself release yet more methane and lock the region into a destructive cycle that forces temperatures to rise faster than predicted.

In other words, a vicious positive-feedback cycle. They don't think we're at the tipping-point yet, but its close, and dangerous. And with the arctic getting warmer every year (thanks in part to its own positive feedback cycle, in which less ice equals more warming equals less ice), there's a real danger that this could run away on us.

as reasonably practicable, and in no case later than 20 working days after the day on which the request is received

Unfortunately, the first part seems to have been forgotten, while the maximum time-limit has become the norm, and frequently for political reasons. By dragging out a response, Ministers and their officials can ensure that information is dead and out of the news cycle by the time it arrives.

But quite apart from the question of abuse, there is also the question of the time limit itself. That 20 day time limit was set back in the 80's, when records were kept on paper and finding the information to respond to a request was a matter of searching for and through physical files. Nowdays, it's all computerised, and the relevant information is usually only a search-engine query away. Technological change has made such a long timeframe for processing requests unjustifiable. The last review of our official information law, back in 1997, recommended that it be lowered to 15 days. Now that IT, search engines and electronic document storage have become absolutely pervasive, that should be lowered even further. But somehow, I doubt there'll be much appetite among politicians to do so. After all, what interest do they have in being able to be held quickly to account?

Why are you cooperating with a party which wants to dig up or bulldoze the most precious parts of our natural environment? Isn't such cooperation indirectly providing PR cover for a party of environmental vandals?

The above is a picture (stolen from the gallery here) of some of the stunning scenery of the Hollyford Valley. The valley is the route of the Hollyford Track, one of New Zealand's great walks. It traverses a glacial valley full of lowland forests, lakes, and rare native birds, a place where our natural environment is at its most unspoilt, and where people can enjoy the isolation and wilderness.

Gerry Brownlee wants to bulldoze a road right through it. Which means that instead of the isolation and natural wilderness, people will get the roar of mining trucks, the stink of diesel, and the invasion of pest species into a world heritage area. And all because some rich guy wants to direct more traffic to his hotel.

This government are simply wreckers. There is no other way to describe them. They see a forest, they want to cut it down. A mountain, they want to dig it up. A river, they want to fill it with cowshit. And all so their rich mates can make even more money. Meanwhile, the natural wilderness the rest of us want to protect and enjoy gets despoiled for the profit of a few.

The PCE highlights the significant impact on water quality, both in the Mackenzie basin and downstream:

“I am particularly concerned about the effect of these dairying operations on the water quality of the Ohau and Ahuriri catchments,” she said. “The combined effluent of these operations would be similar in quantity to a city the size of Christchurch being located in the Mackenzie Basin.”

A recent report from NIWA suggests that if the amount of nutrients entering Lake Benmore was to substantially increase, then the water quality of the lake and lower Waitaki River would be likely to seriously deteriorate.

“Such a result would be highly undesirable – especially as this region is popular for tourism and recreation,” Dr Wright stated. “In addition, Meridian has submitted evidence that there may also be implications for the ability of the Waitaki Power Scheme to generate carbon-free electricity.“

This certainly meets the statutory criteria under the old version of the Act - the one Nick Smith says applies - that allow a call-in where the Minister believes a project

has aroused widespread public concern or interest regarding its actual or likely effect on the environment

It may also meet the requirement in old s141B(2)(d) of affecting more than one region or district.

Normally I oppose call-ins - in the past they have typically been argued on weak grounds and are primarily aimed at forum-shopping by dirty developers who want to ride roughshod over local communities. Here, its based on environmental impacts, and it is the local community and regional council rather than the developer who are pushing for the call-in. There's now also a matter of consistent application of the law. The Minister has set a precedent by calling in the consent for the Turitea wind-farm, a fairly ordinary mid-sized wind project. If that qualifies as a "project of national significance", then it is difficult to see how a proposal to flood the Mackenzie Country with cowshit does not.

Wednesday, January 13, 2010

A Dutch committee of inquiry has found that the Iraq war was illegal and that the Netherlands' support for the invasion was unjustified. Its the usual story - selective use of intelligence by politicians focused on toadying to the US, lies to the public and the Parliament; unlike the UK, though, the Dutch Parliament didn't buy the bullshit, and as a result Dutch forces did not participate in the invasion itself. Still, it casts the leadership of the time in a very bad light, and makes a strong case that Prime Minister Jan-Peter Balkenende misled Parliament. The Dutch Parliament is likely to be looking into that, and hopefully they'll be able to hold him to account.

This week, the government announced proudly that it was improving relations with Fiji. Unfortunately, this improvement comes at a time when the illegal military regime is increasing its crackdown on its critics. In the past week, the Fijian regime has:

Fiji's military regime has come up with a new way of punishing and silencing its critics: cutting their pensions:

The Fiji interim government says as of this week government pensioners who have been speaking out against the current government have had their pension payments stopped.

The interim prime minister, Commodore Frank Bainimarama, has told Radio Fiji that a decree to that effect was passed last week.

Commodore Bainimarama said payments to dissenting pensioners were stopped as soon as the decree was promulgated.

Lets just hope Paula Bennett doesn't hear of this - it might give her ideas.

Update: Fiji Today calls this using food as a weapon, and they're not wrong. This is a deliberate attempt to starve critics of the regime into silence by stealing their money (pensions in Fiji are funded by mandatory contributions to an "independent" Fiji National Provident Fund, not by the government. So its as if they've ordered e.g. AMP to cease paying out a private superannuation scheme on political grounds).

A couple of years ago, in a reversal of its "don't be evil" policy, Google decided to collaborate with the authoritarian Chinese regime, setting up google.cn to provide search services to the Chinese market. The search results were censored, of course - no mention of Tibet, human rights, or anything critical of the Chinese government - but Google's suits considered it was worth selling out in order to get a slice of the Chinese market.

These attacks and the surveillance they have uncovered--combined with the attempts over the past year to further limit free speech on the web--have led us to conclude that we should review the feasibility of our business operations in China. We have decided we are no longer willing to continue censoring our results on Google.cn, and so over the next few weeks we will be discussing with the Chinese government the basis on which we could operate an unfiltered search engine within the law, if at all. We recognize that this may well mean having to shut down Google.cn, and potentially our offices in China.

The lesson: you can't do business with China if you respect human rights. And hopefully, other internet companies will follow suit.

In 2000, during a periodic update of anti-terrorism laws, the UK Parliament enacted a now-notorious law. Section 44 of the Terrorism Act 2000 permits police to stop and search any person or vehicle in a designated area and seize anything they suspect could be used for terrorism. The law did not require any suspicion in order to initiate a search, and as a result it has been widely abused. It is now routinely used against political protestors, who can expect to be labelled "terrorists" and be arbitrarily detained and searched for speaking up about their society. It has been used against critics of the government, and against photographers. There were over 250,000 such searches carried out last year, and it seems to be becoming a regular and routine invasion of privacy.

The UK government is of course appealing, but it is difficult to see how they will win. "Search requires reasonable suspicion" is a fundamental rule in a decent society under the rule of law, and the UK law simply abandons this. Rather than stamping their feet like petulant little authoritarians, they should simply amend the law to require reasonable suspicion to conduct searches. But then it wouldn't be nearly so useful in intimidating and suppressing democratic dissent...

Tuesday, January 12, 2010

A couple of years ago, Chinese toy manufacturers faced a crisis when their products were banned or recalled after they were found to contain toxic levels of lead. The bans and recalls should have forced manufacturers to clean up their act; sadly, they've simply switched poisons:

Barred from using lead in children's jewelry because of its toxicity, some Chinese manufacturers have been substituting the more dangerous heavy metal cadmium in sparkling charm bracelets and shiny pendants being sold throughout the United States, an Associated Press investigation shows.

The most contaminated piece analyzed in lab testing performed for the AP contained a startling 91 percent cadmium by weight. The cadmium content of other contaminated trinkets, all purchased at national and regional chains or franchises, tested at 89 percent, 86 percent and 84 percent by weight. The testing also showed that some items easily shed the heavy metal, raising additional concerns about the levels of exposure to children.

Its not like they're trying to kill people - its just that Cadmium is cheap and no-one ever tests for it. This discovery will lead to better regulation of the use of Cadmium in toys, and to several manufacturers losing their contracts. And then, they'll simply move on to selling some other toxic crap. And they'll keep doing it until the penalties for doing so rise to make it no longer financially worthwhile to poison their customers.

Back in 2008, the California Supreme Court briefly made same-sex marriage legal in that state. but the ruling was squashed within a month by the passage of Proposition 8, a referendum which amended the California state constitution to enforce bigotry. Now, the validity of that amendment is being challenged in federal court.

The challenge is simple: denying marriage to same-sex couples violates the Fourteenth Amendment's guarantees of due process and equal protection under the law. The logic is the same as that underlying Loving v. Virginia, the 1967 case which overturned bans on interracial marriage, and effectively asks the court to recognise that homophobia is as invidious and unjustified a moral evil as racism. The question is whether the US as a nation can recognise that, or whether it will continue to uphold Christian bigotry.

Just before the holidays, the Court of Appeal released its decision in R v. Morse [PDF], upholding Valerie Morse's conviction for offensive behaviour for burning a flag at an Anzac Day dawn service in 2007. Because of the holidays, the Ministry of Justice didn't get around to putting it online until today, and so I've only just had a chance to read it.

The decision was by majority, and the prevailing decision, from Justice Arnold, is simply appalling. Following the usual caselaw, Arnold conducts the usual balancing exercise, weighing offensiveness against the right to freedom of expression affirmed in the BORA. Arnold upholds the decision of the lower courts that burning the flag was offensive as it was capable of "wounding feelings or arousing real anger, resentment, disgust or outrage in the mind of a reasonable person of the kind actually subjected to it" (the District Court judge goes further and calls it "desecration"). As for freedom of speech, Arnold discounts that by noting that other (less effective) means of protest were available, that burning the flag was aimed at drawing attention to the protestors message, and that by telling them something they didn't want to hear, this interfered with the freedom of speech of the audience. Of course, as noted in Brooker,

the purpose of protest is to make someone listen to something they do not want to hear.

If not overturned by the Supreme Court, Justice Arnold's Orwellian ruling effectively makes all but the most meek and mild protests unlawful, and the BORA's affirmation of freedom of speech a dead letter.

(Justice Arnold bases his reasoning on a US case about harassment at abortion clinics and another about protests at funerals. The former is about "unwanted approach", the later private events. In both cases there is a strong presumption of privacy, and it is difficult to see how either applies to a public gathering in a public place).

Arnold was backed in his decision by Justice Young, who basically sticks his fingers in his ears and goes "la la la whether something is offensive is a matter of fact not law and thus unreviewable la la la", and then adds a "but I think it was offensive anyway" (the initial argument is dismissed by Justice Glazebrook. Yes, its a finding of fact. But whether that finding was reasonable and whether the proper test was used are both matters for review by higher courts).

In dissent, Justice Glazebrook argues that Arnold's Orwellian argument is unsound, and furthermore that in the light of Brooker, no "reasonable person" with a proper understanding of freedom of speech could conclude that Morse's behaviour was offensive.

As noted above, I am hoping that this decision will be appealed. It applies restrictions suitable for a deeply private place or event to a public place, and that is simply incorrect. But more generally, it seems that we are still under the tyranny of the "reasonable person", in that whether something is offensive or not is decided by whether an imaginary "reasonable person" would be strongly offended by it. But as pointed out by Kenneth Keith way back in 1968, this is a test which inherently supports the status quo:

is not the stated test - "a course of action calculated to cause resentment or revulsion in right-thinking persons" [as it was put then - I/S] - both very subjective and majoritarian? Is there not a real danger that the preference of "right-thinking persons" is more likely to be for the status quo, that all strong action by a minority group challenging accepted opinions is likely to cause resentment in such persons' minds?

Keith pointed out that when originally passed, New Zealand's law against offensive behaviour was very tightly targeted at public order, applying only to those who used

threatening abusive or insulting words or behaviour in any public street thoroughfare or place with intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned.

(Emphasis added)

The latter part has since been repealed, shifting the law from being about preventing brawls and riots - a legitimate reason for restricting freedom of speech - to (as is clear from this case) protecting people from messages and criticism they do not want to hear. This should not stand in a democratic society; the law needs to be repealed.